ADVERTISEMENTS

U.S. v. Struckman, No. 08-30312 (6-30-10) (Berzon joined by O'Scannlain and Kleinfeld; concurrence by Berzon). The government charged the defendant with massive tax fraud in 2004. He left to Panama and refused to come out. The government then made misrepresentations to the Panamanian government and courts that got the defendant removed. In addition to unclean hands in its haste to grab the defendant upon his removal from Panama, the government committed egregious Brady / Giglio violations which resulted in suppression of evidence and witnesses. On appeal, the defendant argues that the conduct was so outrageous that the indictment should be dismissed. The 9th expressed its distaste for the government's actions, but found that dismissal was not appropriate for the misrepresentations to Panama that got him here (that is up to the State Dept). As for the Brady / Giglio violations, including fabricating sources of information (so-called "Ted") and not disclosing all sorts of deals and impeachment on witnesses, the suppression of evidence was the appropriate remedy. Going back to "Ted," it seems that the government fabricated this witness as a source of information, and refused to name the source when ordered by the court. This did not make the 9th very happy. Concurring to her opinion, Berzon would remand the case to see what other mischief the government may have been up to, and to finally get the information requested by the court.

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